Henenberg v. Winn

• Decision Date: 15 December 1927
• Docket Number: (No. 2077.)
• Citation: 1 S.W.2d 432
• Parties: HENENBERG v. WINN et al.
• Court: Texas Court of Appeals

1 S.W.2d 432

HENENBERG v. WINN et al.

(No. 2077.)

Court of Civil Appeals of Texas. El Paso.

December 15, 1927.

Rehearing Denied January 5, 1928.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Suit by E. F. and F. W. Winn against J. Henenberg. Judgment for plaintiffs, and defendant appeals. Affirmed.

O. F. Wencker and Hattie L. Henenberg, both of Dallas, for appellant.

Ross M. Scott, of Dallas, for appellees.

HIGGINS, J.

Appellant, Henenberg, of New York City, was the owner of a brick building in Dallas, Tex. The west wall of the building was situate upon a strip of land 17 inches wide fronting upon Elm street, being on the east side of the west one-half of lot 25, in block G/2/170.

By deed dated July 22, 1913, J. D. Smith and wife conveyed to Henenberg the east 8½ inches of said tract and one-half interest in the party wall, the land so conveyed being described as follows:

"Beginning at the N. E. corner of said west half of said lot 25 in said block G/2/170, the said point being 25 feet east from the N. W. corner of said lot 25, running thence in a southerly direction along the division line of said west half of said lot 25, and at right angles to Elm street, and along the east line of a brick wall now standing on said premises 100 feet to a stake for corner; thence westerly and parallel with Elm street 8½ inches; thence northerly and parallel with said east line of said lot 25, in said block G/2/170, 100 feet to Elm street; thence easterly with Elm street 8½ inches to the place of beginning."

By deed dated July 1, 1921, Henenberg and wife, in consideration of $30,500, conveyed to the appellees Winn Bros. a tract of land in said block described as follows:

"Beginning at a point on the S. line of Elm street, 25 feet east of the N. E. corner of lot 24 in said block; thence in a southerly direction at right angles to Elm street, 100 feet to stake; thence in an easterly direction parallel with said line of Elm street, 45 feet 8 inches to stake; thence in a northerly direction 100 feet more or less to a stake on the said line of Elm street at a point 48 5/12 feet from the place of beginning; thence in a westerly direction with the said line of Elm street 48 5/12 feet to the place of beginning, and being the same property conveyed to J. Henenberg by Phillip Baronzik and Israel Faronzik, deed dated February 5, 1910. Recorded in Book 448, p. 622, in the office of the Dallas county clerk of Dallas county, Tex."

Subsequently appellees brought this suit against Henenberg, the first count of the petition being in the statutory form of trespass to try title to the two tracks above described; the second count in the petition being, in substance, for reformation of the deed and recovery of the 8½-inch strip of land.

Henenberg answered by pleas of misjoinder of causes of action, nonjoinder of Mrs. Henenberg as a necessary party defendant, general and special exceptions, not guilty, and general denial. No proposition is here presented with respect to the court's ruling upon the exceptions and plea of nonjoinder.

Upon trial the plaintiffs introduced in evidence the two deeds above mentioned.

H. H. Jacoby, a real estate agent, testified in their behalf that he knew the Henenberg property on the south side of Elm street with a brick house on it and sold the building to Winn Bros., for the price Henenberg authorized him to sell it, after showing the building to them. He sent the deed to New York, and it was mailed to a niece of Henenberg in Dallas in whose office the deal was finally closed. Appellees testified that the building was shown to them by Jacoby, and it clearly appears it was contemplated by them and the agent that the entire building and the ground upon which it was situate was to be conveyed. After...